The primary question on this appeal concerns the admissibility of a rape
victim's testimony when she has undergone hypnosis sometime prior to trial
for the purpose of refreshing or restoring her memory of the incident.
The trial court held that the pre-trial use of hypnosis did not affect
the admissibility of the victim's testimony but only presented a credibility
question for the jury. The Appellate Division reversed and ordered a new
trial. The court held that hypnosis has not been generally accepted in
the scientific community as a reliable method of restoring memory and
that therefore the victim's posthypnotic recollections should have been
suppressed. The court noted however that on the new trial the victim could
testify concerning events recalled prior to hypnosis. The prosecutor has
appealed.

I

On the evening of May 19, 1978 a man broke into the victim's Syracuse
apartment, dragged her from her bed and raped her in the yard behind her
home. During the attack she was choked and beaten. On June 8, 1978 the
defendant was arrested and subsequently indicted for rape, assault and
burglary in connection with the incident.

Prior to trial the defendant moved to suppress the victim's identification.
In support of the application he noted that the victim's hospital records
indicated that she was unable to recall what happened. It was also noted
that after her release from the hospital the police had arranged for her
to be hypnotized by a psychologist and under hypnosis she apparently was
able to identify the defendant as her assailant. The defendant contended
that hypnosis "has as its core and implementation a suggestibility"
and that the victim's identification was therefore unduly suggestive as
a matter of law. In the alternative he requested a hearing pursuant to
United States v. Wade, 388 U.S. 218.

The trial court granted the motion to the extent of ordering that a hearing
be held. That court adopted what it found to be the general, if not universal,
rule throughout the country at that time, that "hypnotically induced
recollection, is not inadmissible as a matter of law." The trial
court held however that "where the hypnosis is conducted by or in
conjunction with or under the direction of law enforcement personnel,
it is clearly an identification proceeding within the meaning of CPL 710.30
and 710.20." The court thus ordered a hearing ["]to determine
whether, under the totality of the circumstances, the procedures used
were so impermissibly suggestive as to give rise to the very substantial
likelihood of irreparable misidentification."

Following that decision the defendant asserted as an additional ground
for suppression, a contention that the hypnosis had impaired his right
of confrontation. He stated: "Once the hypnosis was held, as the
victim cannot separate the result of the hypnosis from the independent
recollection, there could never be a right of cross-examination at that
point."

The testimony at the hearing shows that in 1978 the victim lived with
her husband and four-year-old son in a two-story house occupied by several
families. The victim and her family occupied one of two apartments on
the second floor; the defendant and his female companion, Dianne, occupied
the other. The two couples were well acquainted, having resided in the
same building for some time. On occasion Dianne babysat for the victim's
son. Indeed several times the defendant himself had done so.

The victim's husband worked at a nearby factory. On Friday, May 19, 1978,
he worked the evening shift beginning at 6 p.m. When he returned from
work shortly after 2 o'clock on Saturday morning he found his wife lying
on the landing between the two apartments. She was not wearing any clothes
and her body was covered with bruises, dirt and grass. She said that she
had been raped.

The victim's husband called the police and she was taken to a local hospital
where she remained for several days. Immediately following her admission
she was sent for a time to the intensive care unit when it was determined
that her blood pressure was low and she was having difficulty breathing.
She was diagnosed as suffering from traumatic injuries, particularly to
her head and neck. The laboratory reports also indicate that she had been
sexually attacked.

The victim originally gave no information to the authorities. An officer
who arrived at the scene testified that she was hysterical and incoherent.
At the hospital she refused to see Officer George Rendle, the investigator
assigned to the case, when he attempted to interview her in the intensive
care unit. Later in the day she informed him that she did not know what
happened. She made similar responses when questioned by hospital personnel.
However, when her sister visited her and asked on several occasions who
had done this to her she finally stated: "I saw Kirk." Kirk
is the defendant's first name.

On that same day Officer Rendle had independently concluded that the
defendant was the prime suspect after making inquiries in the neighborhood
and learning from another officer that the defendant had recently been
arrested and charged with a rape committed in April. That afternoon he
questioned the defendant at police headquarters located in the Public
Safety Building in Syracuse. At that time the officer noticed and photographed
scratches on the defendant's back. The defendant also made a potentially
incriminating statement which was subsequently suppressed on the ground
that he had not been advised of all of his rights. Later the officer went
to the defendant's apartment where Dianne turned over certain items of
clothing belonging to the defendant. That evening the victim's husband
saw a photograph of the defendant in Officer Rendle's file and learned
that the police suspected the defendant of the rape. However at the officer's
request he agreed not to inform his wife of this.

On May 22 Officer Rendle returned to the hospital with Officer Denise
Banazek and found the victim more responsive. He testified that on this
occasion the victim told him that on the night of the attack she put her
son to bed early and went to bed herself sometime before 9 o'clock. She
left the door unlocked for her husband who did not have his key. She next
recalled someone grabbing her by the throat and dragging her down a flight
of stairs. She also recalled that there was another person outside talking
to her attacker. This other person did not hurt her and ran away while
the attack on her continued. She said that her attacker wore eyeglasses
and had smooth hair which was not very long.

On May 24 Officer Rendle spoke to the victim again, this time at her
sister's home. The officer testified that during this interview she stated
"it wasn't clear, things were not quite clear but [she] kept remembering
Kirk. She stated this occurred while she was in the hospital and her head
stopped spinning." They also discussed hypnosis and the victim agreed
to try anything that would help her recall the man who had attacked her.
That same day the officer called Dr. Jay M. Land, a clinical psychologist
in private practice, and told him that he was investigating a rape or
assault in which the victim could not identify her attacker. He also indicated
that there was a suspect but at the doctor's request did not identify
him or reveal any of the details of the investigation. The psychologist
agreed to meet with the victim and an appointment was made for the interview.
Sometime prior to that meeting the victim's husband told her that the
police suspected the defendant of the rape.

The first hypnotic session took place at the Public Safety Building on
June 7. A preliminary meeting between Dr. Land, the victim and her husband
was not recorded. The remainder of the session, lasting approximately
an hour and a half, was recorded on video tape. At the victim's request
her husband was present. Officer Rendle and the officer operating the
recording equipment also attended. In response to one of Dr. Land's questions
before the induction, the victim stated that she knew the police had a
suspect but she hoped it wasn't the defendant. Dr. Land then proceeded
to hypnotize her and asked her to imagine that she was watching a television
on which she could see what had occurred in her room on the night of May
19. This proved unsuccessful and she was awakened. However she agreed
to try again, was again placed in a hypnotic state and this time identified
the defendant as her attacker. When she was awakened she recalled identifying
the defendant and confirmed the identification. At that point the recording
equipment was turned off. She was asked several questions by Officer Rendle
and gave him an affidavit identifying the defendant as the man who had
raped and beaten her.

Subsequently the victim read in the newspapers about the possible effects
of prehypnotic suggestions and decided to consult a psychiatrist, Dr.
Goldfarb, to make sure she was not being forced to remember something
that was not true. That led to three meetings with Dr. Goldfarb, all of
which were recorded on audio tape. At the first meeting on June 20 she
informed the psychiatrist that she had been attacked and raped and was
attempting to recall a man's name. She also told him that she had been
hypnotized and that some information had "come out" during that
session and she wanted to find out whether it was true. During that meeting
Dr. Goldfarb hypnotized her but she could only remember someone's hand
around her throat and mouth and nothing beyond that.

On June 24 Dr. Goldfarb again placed her under hypnosis but encountered
the same "block." He then suggested that they use sodium pentothal,
a so-called "truth-serum." She agreed and an appointment was
made for July 11.

Before her next meeting with Dr. Goldfarb, the victim was again hypnotized
by Dr. Land on June 27. However at this session, which was recorded on
audio tape, she could not remember any more than she had at the first
session with Dr. Land.

On July 11, Dr. Goldfarb administered sodium pentothal to the victim
at St. Joseph's Hospital. While under the influence of this drug she recalled
being raped outdoors by the defendant. She also recalled that the defendant's
brother was present and attempted to talk the defendant out of it. On
July 22 she told Officer Rendle that the defendant's brother was the second
man in the backyard.

At the hearing the People also called several neighbors for the purpose
of corroborating the victim's recollections. Anna De Pasquale, who resided
in the house adjoining the victim's, testified that she was sitting on
her porch at about 10 o'clock on the evening of May 19 when she saw the
defendant arrive home. Mrs. De Pasquale's daughter, Ann Brown, recalled
that at approximately 10:15 that evening, while she was upstairs reading,
she heard a child "really screaming" in the victim's house,
and then heard a woman shouting "what are you doing here. What do
you want, get out." A few minutes later she heard a thumping noise
"like something going" down the stairs, followed by a child
crying: "Mommy, where are you?" Shirley Thompson, a neighbor
residing directly across the street, also heard a child crying and saw
him in the window of the victim's apartment calling for his mother. She
then saw the child come downstairs, look around and return upstairs. Shortly
after 11 o'clock, while Mrs. Thompson was standing on the sidewalk in
front of her home, she saw the defendant emerge from the alleyway next
to his home and proceed up the stairs. These neighbors had all resided
in the neighborhood for several years and were acquainted with the defendant.

After the hearing the court filed a written opinion in which it concluded
that the People had shown by clear and convincing evidence that the hypnotic
procedures employed by Dr. Land were not impermissibly suggestive under
the totality of the circumstances. Recognizing the suggestibility of the
person who has been hypnotized, and the potential for abuse, the hearing
court adopted an extensive set of safeguards to be followed by the police
and the hypnotist whenever there is a possibility that the person undergoing
hypnosis may be later called to testify at trial. The court held that
"although not each of these safeguards was adhered to strictly and
a few not at all ... there was substantial compliance such that the defendant's
rights were adequately protected." The court also stated that all
facts given during the session should be corroborated as far as possible
because "all professionals agree that no examiner can be certain
that the responses of the subject are free from confabulation" or
can be considered reliable without independent verification. On this point
the court concluded that the neighbors' testimony as well as the statement
the victim made to her sister in the hospital "although circumstantial
in nature, tends to verify the accuracy of the hypnotically aided recall."

At the trial the victim testified to the events as recalled both prior
to and following the various hypnotic sessions and identified the defendant
as her attacker. The jury found the defendant guilty of rape, burglary
and assault.

The Appellate Division reversed in an opinion in which a majority of
the court found that the trial court's decision "runs counter to
the thrust of recent holdings in other jurisdictions that such evidence
should not be permitted" unless it satisfies the criterion for the
admission of scientific proof. The majority concluded: "From our
reading of recent decisions in the field and of recognized authorities
we are persuaded that hypnotically produced testimony is not generally
accepted in the scientific community as reliable and that it should therefore,
be inadmissible." However, as noted, the majority also indicated
that upon the new trial the victim would not be precluded from testifying
to facts recalled prior to the first hypnotic procedure. One Justice dissented
on the ground that hypnotically refreshed recollections should be admissible
when corroborated by other evidence, and concluded that in this case there
was sufficient corroboration.

II

Although hypnosis has long been regarded with suspicion or disapproval
as one of the dark arts, it is now recognized as a procedure having a
scientific basis, not fully understood but proven capable of producing
useful or beneficial results in limited contexts. It has frequently been
employed to check compulsive habits, alleviate pain and, less frequently,
to perform operations without anesthesia. It is also employed with some
regularity in the diagnosis and treatment of mental disorders including
amnesia (9 Encyclopaedia Britannica, Macropaedia [1981] Hypnosis, p.133).
In the 1950's hypnosis was formally acknowledged by the major medical
associations as an accepted procedure for medical use (see Council on
Mental Heath, Medical Use of Hypnosis, 168 JAMA 186, 187; Cheek &
Le Cron, Clinical Hypno-therapy [1968], p.19).

In recent years it has also been used to obtain leads in criminal investigations.
Hypnosis has been credited with furnishing the crucial lead, a license
plate number, in a California case involving the kidnapping of 26 children
from a school bus. It was also reported as instrumental in another celebrated
case involving the murder of a cellist at the Metropolitan Opera in New
York (see Hypnotism v. Crime: A Powerful Weapon or an Abused Tool?, New
York Times, Oct. 14, 1980, col. 1). Its failures understandably have received
less attention, but it is clear from the scientific journals which study
and report on the phenomenon, that the use of hypnosis in criminal investigations
produces at best mixed results. Nevertheless law enforcement authorities
are increasingly resorting to hypnosis to obtain leads, particularly in
cases where traditional police procedures have been fruitless. In fact
many law enforcement agencies are now having officers trained in the use
of hypnosis, who are sometimes referred to as members of the Svengali
Squad.

The latest, and most controversial development, involves the attempt
by litigants to introduce hypnotically induced statements as evidence
in civil and, more commonly, criminal trials. The suitability of utilizing
hypnotic results in legal proceedings has not been endorsed by scientific
experts. On the contrary their response essentially has been either to
condemn the practice or caution that it be used very sparingly and then
only under limited and controlled circumstances.

The basic problem with admitting hypnotically generated statements or
recollections in evidence is that hypnosis is an inherently suggestive
procedure. In fact suggestion is the method or mechanism used to induce
the hypnotic state. Of course the power of suggestion does not affect
all people to the same extent and, indeed, has little or no effect on
some. It is recognized, however, that the hypnotic subject will be affected
to some degree in three primary respects.

First, a person who has been hypnotized becomes increasingly susceptible
to suggestions consciously or unconsciously planted by the hypnotist or
others present during the session. The place at which the procedure is
employed and the purpose for conducting it may also suggest or affect
the outcome.

Second, the subject himself may confabulate, that is imagine incidents
to fill memory gaps, by for instance imagining that he has experienced
something he has simply heard from others. He may also intentionally fabricate
events perceived to be beneficial to himself or those conducting the hypnotic
session.

Third, a person who has recalled an incident under hypnosis will experience
an increased confidence in his subsequent recollection of that incident.

These effects have been demonstrated under experimental conditions. In
one series of experiments, involving age regression, hypnotic subjects
were able to recall, with great detail and convincing manner, events or
incidents from their childhood which upon investigation often proved to
be totally unfounded. A more dramatic illustration is provided by experiments
with age progression in which the hypnotized persons recalled, with equal
specificity and conviction, events which "happened" in the future.
In these instances the defects in hypnotically induced recollection were
easily detected by reference to known facts. When such verification is
not available, there is no currently accepted method for scientifically
determining the reliability of hypnotically induced recollection.

These are points on which all of the experts who testified at the hearing
in this case agreed and, as indicated, they are supported by the literature
on the subject. Indeed the Executive Council of the Society for Clinical
and Experimental Hypnosis has formally adopted the following resolution:

Because we recognize that hypnotically aided recall may
produce either accurate memories or at times may facilitate the creation
of pseudo memories, or fantasies that are accepted as real by subject
and hypnotist alike, we are deeply troubled by the utilization of this
technique among the police. It must be emphasized that there is no known
way of distinguishing with certainty between actual recall and pseudo
memories except by independent verification.

(27 Int. J. of Clinical & Experimental Hypnosis 452.)

In the clinical setting where the goal is to relieve distress, and not
compile an accurate account of a past event, the inherent suggestibility
of the hypnotic procedure is generally beneficial to the patient. In criminal
investigations the fact that a hypnotized witness may furnish a false
lead is hardly beneficial but often worth the time needed to pursue it
if no other leads are available. Scientific experts have no general objection
to the investigative use of hypnosis provided the posthypnotic recollections
are used only as leads to other evidence which then serves to solve or
prove the crime. The potential unreliability of the hypnotic statements
will be resolved or rendered moot as soon as the lead has been investigated.
But the side effects of hypnosis cannot be so easily discounted if the
hypnotically induced statements are later sought to be introduced at trial.

III

Although this is the first case to present the issue to this court, it
has been extensively litigated in other jurisdictions both State and Federal.
Most of the cases are of recent origin and as the decisions of the lower
courts in this case indicate, the results have been diverse.

At the center of the controversy is the question as to whether the general
rule governing the admissibility of scientific evidence applies to hypnotic
recall. That rule, originally formulated in Frye v. United States, 293
F. 1013, provides that scientific evidence will only be admitted at trial
if the procedure and results are generally accepted as reliable in the
scientific community.

There appears to be general agreement among the courts that the Frye
rule applies to, and renders inadmissible, statements made by a witness
under hypnosis when the statements are offered for the purpose of verifying
the truth of the witness's trial testimony. Typically this evidence is
offered by the defendant to bolster his version of the facts or to undermine
a confession which conflicts with his testimony at trial. The first court
to consider the point bluntly stated that the law "'does not recognize
hypnotism"' (People v. Ebanks, 117 Cal. 652, 665, 49 P. 1049 [1897]).
More recent cases note that there is no generally accepted scientific
method for determining whether a statement made under hypnosis is an accurate
recollection, deliberate fabrication or unwitting confabulation. In these
cases hypnosis is frequently analogized to truth serums and lie detectors,
the results of which are generally excluded at trial on similar grounds.

It is now clear that the police cannot refresh a witness's recollection
by use of a suggestive pretrial identification procedure, and that such
practices might violate the defendant's right to due process (Stovall
v. Denno, 388 U.S. 293, 302). The Supreme Court has also held that the
defendant has a right to counsel at identification proceedings occurring
after the commencement of the criminal action (United States v. Wade,
388 U.S. 218, supra). These rules were prompted by increased judicial
sensitivity to the fact that "[t]he influence of improper suggestion
upon identifying witnesses probably accounts for more miscarriages of
justice than any other single factor--perhaps it is responsible for more
such errors than all other factors combined" (Wall, Eye-Witness Identification
in Criminal Cases, p.26, quoted in United States v. Wade, supra, at p.229).
The vagaries of eyewitness identification have long been a concern of
this court which has on occasion gone further than the Federal Constitution
requires in order to further minimize the risk of mistaken identification
(see, e.g., People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d
379).

Similarly, when presented with scientific evidence purporting to gauge
the credibility of participants or witnesses to a criminal incident, we
have established a very high level of reliability, tantamount to certainty,
as a predicate for its admissibility (People v. Leone, 25 N.Y.2d 511,
307 N.Y.S.2d 430, 255 N.E.2d 696). Although ordinary scientific proof
need not meet such a demanding standard, the increased certitude has been
found appropriate when the fallibility of the scientific procedure might
directly affect the fact finder's assessment of eyewitness credibility
(People v. Allweiss, 48 N.Y.2d 40, 50, 421 N.Y.S.2d 341, 396 N.E.2d 735).

Hypnotically refreshed recollections pose analogous problems. Because
hypnosis is an inherently suggestive procedure, its use by the police
to obtain an identification or details concerning a crime may, if impermissibly
suggestive, violate the defendant's constitutional rights. The constitutional
cases usually deal with identifications by strangers. The principles,
however, would also seem to be applicable to cases, such as this one,
in which the parties were well acquainted but the victim or witness experienced
some difficulty in describing the event or making an identification because
of the circumstances under which the crime was committed. The constitutional
restrictions aimed at curtailing improperly suggestive police procedures,
would not apply to hypnosis employed by private individuals without any
police involvement. The common-law rules of evidence, on the other hand,
are not so limited in their application and do not require an element
of State action. We do not rely on the constitutional questions for the
resolution of this case.

Contrary to the prosecutor's contention, hypnosis is not comparable to
the other methods of refreshing recollection long accepted at common law.
Indeed if the prosecutor's point were well taken there would be no need,
when the other means were available, to employ hypnosis. One of the legally
endorsed techniques for reviving a witness's recollection would do just
as well. What distinguishes hypnosis is the fact that suggestion is an
essential and inseparable part of the process which alters a witness's
consciousness and makes him more prone to suggestion and to recall events
inaccurately than he would in a normal state of consciousness. In fact,
it is a scientific process and the recollections it generates must be
considered as scientific results. Certainly a layman could not assess
those results without expert guidance and might be unduly impressed by
the witness's enhanced recollections if he mistakenly viewed them as the
result of normal recall.

The question then is whether the results are generally accepted as reliable
in the scientific community. Because hypnosis is only intended to restore
memory loss, and not to gauge the truth of the subject's statements, it
would seem that the proper inquiry is whether hypnosis has gained general
acceptance in the scientific community as a reliable means of restoring
recollection. It is evident, however, that at the present time hypnosis
has not achieved that status. As noted it has been scientifically demonstrated
that it produces recollections which may contain a mixture of accurate
recall, fantasy or pure fabrication in unknown quantities.

The standards adopted by the trial court in the case now before us (see,
also, State v. Hurd, 86 N.J. 525, 432 A.2d 86, supra) although proposed
by leading experts would only provide a partial solution even if strictly
followed.(1) The primary purpose
of those standards is to govern the conduct of the police and the hypnotist
so as to minimize or hopefully eliminate the possibility of suggestion
coming from those parties. This, however, is not the major problem. As
one commentator has observed: "The greatest variable in the hypnosis
of an individual is the individual himself." No procedures have yet
been devised for eliminating the common risk that the subject himself
is more likely to confabulate or fantasize to fill in gaps in his memory
as a result of the hypnotic process. Nor is there any scientific method
for detecting this type of "recollection," absent objective
external verification of the statements generated by the hypnotic session.

We note that even if we had found that the proposed standards provided
an effective means of insuring reliable recall under hypnosis, they could
not be said to have been adequately met in this case. The information
provided by the police to the hypnotist concerning the crime was not furnished
in writing or otherwise recorded. Police officers, as well as the victim's
husband, were present at the initial hypnotic session when the victim
made her first positive identification of the defendant. Indeed, the hypnotic
session was not held in a neutral setting, but at the police headquarters.
In addition, and most significantly, the victim knew that the police had
a suspect and knew that it was the defendant because her husband had informed
her of this sometime prior to the first hypnotic session.

Neither can it be said that there was any objective verification of the
victim's recollections. This, of course, was not a classic case where
the police had no suspect and needed to employ hypnosis in order to obtain
leads for further investigation. There is no showing on the record that
the hypnotic sessions with the victim provided any leads or information
which the police did not already possess. Indeed it appears that the victim's
recollections under hypnosis had the opposite effect of confirming or
validating the suspicions of the police, to which she was unfortunately
privy.

In sum, the Appellate Division correctly held that the defendant is entitled
to a new trial because the trial court should not have permitted the victim
to testify to events recalled after the hypnotic sessions. However, since
there must be a new trial, we note our agreement with those courts which
have concluded that the pretrial use of hypnosis does not necessarily
render the witness incompetent to testify to events recalled prior to
being hypnotized.

As indicated, hypnosis has proven to be a useful and apparently essential
investigative tool for generating leads in cases where normal police procedures
have proven inadequate, although its use to confirm police suspicions,
or prepare a witness for trial is more dubious and is not to be encouraged.
It also appears that hypnosis has become a fairly standard course of medical
treatment for amnesia resulting from traumatic events, including witnessing
or being victimized by a criminal act. A criminal trial for rape or assault
would present an odd spectacle if the victim was barred from saying anything,
including the fact that the crime occurred, simply because he or she submitted
to hypnosis sometime prior to trial to aid the investigation or obtain
needed medical treatment. Even in cases dealing with the frailties of
eyewitness identification some allowance must be made for practicalities.

When confronted with suggestive pretrial identifications it has not been
found necessary to preclude the witness from making an in-court identification
on the basis of recollections prior to the suggestive procedure, if it
is found as a fact that he can do so without relying on the improperly
made identification. A similar procedure would seem to be appropriate
in cases involving the pretrial use of hypnosis.

The major difficulty, of course, is that a witness who has been hypnotized
acquires an increased confidence in his recollections, presumably greater
than the witness who has experienced a suggestive identification, which
could inhibit the defendant's right of cross-examination. The problem
is greatest when the hypnotist suggests to the person under hypnosis that
a certain event occurred or that the person will recall everything when
he returns to the normal state of consciousness. Absent such suggestions
it appears that the degree of confidence gained through hypnosis depends
upon the individual's belief in the ability of hypnosis to yield the truth,
the degree to which he has been hypnotized and the extent to which those
administering the hypnosis have observed the standards recommended by
the experts. Indeed in some cases where the witness was quite confident
in his initial recollections and hypnosis was employed unsuccessfully
to yield additional details, there may be little or no impairment of the
defendant's power to cross-examine. In any event these are questions which
the trial court should resolve at a pretrial hearing.

It would appear that two aspects of the matter warrant inquiry and resolution
at the pretrial state--the extent of the witness's prehypnotic recollection
(which would establish the boundaries of admissible testimony) and whether
the hypnosis was so impermissibly suggestive as to require exclusion of
in-court testimony with respect to such prehypnotic recollection. Little
reported authority is available as a basis on which to prescribe guidelines
for such inquiry and resolution. Experience and determination on a case-by-case
basis will be required before procedural standards can be properly enunciated
with any degree of definiteness.

As to the scope and content of the prehypnotic recollection of the witness,
it would seem that evidence, testimonial and documentary, which is material
to the determination thereof should be received at the pretrial hearing,
without rigid application of the hearsay rule. The proof to establish
the extent of the witness's unaided recollection of the particular criminal
transaction will necessarily vary from case to case and will depend on
what procedures were followed and what events occurred before the hypnosis.
To the extent practicable full opportunity should be afforded counsel
to test the probative worth of the proof offered.

With respect to the hypnosis itself, detailed proof should be introduced
as to the precise procedures that were followed in the particular instance,
including measures taken to reduce the risk of impermissible suggestiveness.
At this point the standards or guidelines proposed by the experts for
the conduct of hypnotic sessions in connection with criminal investigations
may be pertinent. Here, too, experience will be the best teacher, and
it would be inappropriate in this case to undertake the formulation of
rigid guidelines.

Because of the unique and sometimes unfathomable consequences of hypnosis,
the People should assume the burden of demonstrating by clear and convincing
proof that the testimony of the witness as to his or her prehypnotic recollection
will be reliable and that there has been no substantial impairment of
the defendant's right of cross-examination. If the witness is held to
be competent to testify, the defendant, of course, has the option at trial
of introducing proof with respect to the hypnotic procedures followed
as well as expert testimony concerning the potential effect of the hypnosis
on the witness's recollections. And since there is general agreement in
the scientific community that a witness who has been hypnotized usually
acquires some measure of confidence in events recalled under hypnosis,
the court should charge the jury to that effect if the defendant requests
it. In our view these measures represent a reasonable accommodation between
the legitimate uses of hypnosis and the defendant's right of confrontation.

In the present case where the trial court erroneously concluded that
hypnosis was a reliable means of refreshing a witness's recollection,
it was not necessary for the court to consider, or the People to address,
the separate question as to whether the witness's prehypnotic recollections
were unduly influenced by the hypnotic sessions. Thus on the retrial the
court should consider the issue at a pretrial hearing.

For the reasons stated, the defendant is entitled to a new trial to be
held in accordance with this opinion, and the order of the Appellate Division
should be affirmed.

What procedural protections would you recommend when such evidence enhanced
by hypnotism is offered? Should a witness be permitted to testify in court
while under hypnosis? Should a pretrial statement made by a witness while
under hypnosis be admissible?

1. 33. In Hurd the court adopted six standards or
guidelines proposed by Dr. Orne in the trial court, which may be briefly
summarized as follows: (1) the hypnotic session should be conducted by
a psychiatrist or psychologist experienced in the use of hypnosis; (2)
he or she should be independent, not regularly employed by either party;
(3) any information given to the hypnotist should be recorded; (4) before
inducing hypnosis the hypnotist should obtain a detailed description of
the facts the subject presently recalls, and should avoid influencing
the description; (5) all contacts between the hypnotist and the subject
should be recorded; (6) only the hypnotist and the subject should be present
during any phase of the hypnotic session.